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Andhra High Court · body

2013 DIGILAW 797 (AP)

K. Gopal Reddy v. M. Buchamma

2013-09-23

A.RAJASHEKER REDDY

body2013
Judgment : Both the counsel have agreed for disposal of the above Civil Revisions Petitions, as such, both the C.R.Ps are taken up for final disposal. Both the Civil Revisions Petitions arise out of the same issue, as such, both the cases are being disposed of by a common order. 2. The factual matrix of the case, which are necessary for disposal of the Civil Revision Cases are as follows: The first respondent herein filed O.S.No.175 of 2008 on the file of Senior Civil Judge’s Court at Bhongir, for partition against the petitioners No.1 to 3 and the respondent No.2 herein. During the course of evidence of Dw.1, the defendants No.1 to 3 filed a document dated 20.06.2004 being captioned as agreement said to have been entered into by the plaintiff and defendants No.1 to 3/revision petitioners herein. The counsel for the first respondent/plaintiff raised an objection and submitted that the document is a relinquishment deed or memorandum of understanding and is compulsorily registerable. The Court below passed an order dated 22.01.2013 holding that the document dated 20.06.2004 is a relinquishment deed, which is compulsorily registerable. Against the same, the defendants No.1 to 3/revision petitioners filed the Civil Revision Case No. 3208 of 2013. 3. Thereafter, the revision petitioners/defendants No.1 to 3 in the suit filed I.A.No.132 of 2013 under Section 35 of the Indian Stamp Act with a prayer to send the document dated 20.04.2004 alleged to have been executed by the respondent No.1/plaintiff to the District Registrar, Nalgonda for assessment and collection of stamp duty. The Court below dismissed the same by order dated 29.04.2013 stating that since by the order of this Court dated 22.02.2013, the document dated 20.06.2004 was held to be a relinquishment deed, and as such it is compulsorily registerable document and the same has become final. Against the same, the defendants No. 1 to 3/revision petitioners filed C.R.P.No.3199 of 2013. 4. Learned counsel for the revision petitioners/defendants No.1 to 3 submits that the document dated 20.06.2004 is only a receipt evidencing the payment of money and at the most it is a document recording past partition, as such, it is not a relinquishment deed which is not compulsorily registerable document. The Court below wrongly came to the conclusion that the document is a relinquishment deed and compulsorily registerable document. The Court below wrongly came to the conclusion that the document is a relinquishment deed and compulsorily registerable document. He further contends that a perusal of the document shows that it is executed recording the past partition and for the payment and no rights were relinquished by the plaintiff. The main purpose has to be seen and while recording the past transaction, it is only stated that first respondent/plaintiff received the amount and there is no relinquishment. In support of his contention, he relied upon a legal proposition reported in BANDIKATLA PADMAVATHI V. BANDIKATLA VEERA BRAHMA CHARI AND OTHERS ( 2013 (3) ALD 249 ). 5. He also contends that at any rate I.A.No.132 of 2013 filed for sending the document to District Registrar, Nalgonda for assessment and collection of stamp duty cannot be dismissed since Section 38 (2) of Indian Stamp Act clearly shows that an application filed for sending the document for compounding has to be allowed. He also contends that the document dated 20.06.2004 would be relied upon by the revision petitioners for collateral purpose and as per Section 49 of the Registration Act, 1908, eventhough the document is not registered, the same can be treated as evidence for any collateral transaction not required to be effected by registered instrument. As such, the Court below erroneously dismissed the application for sending the document for impounding. In support of his contentions, he placed reliance on the legal propositions between MEHRUNNISA BEGUM V. M.A. KHADAR AND OTHERS ( 2011 (5) ALD 467 ), NUVVURU VENKATA SUBBA REDDY V. SK. MOHAMMED HUSSAIN AND ANOTHER (2002(1) An.W.R.393 (AP)) and M.A. BHUPATHI V. M. KOTESWARA MUDALI AND ANOTHER ( 1998(2) ALT 21 ). 6. On the other hand, the learned counsel for the respondents contends that the document in question dated 20.06.2004 is nothing but a relinquishment deed, since the first respondent/plaintiff has relinquished her share in the property. In the first part of the document, it is mentioned that past partition is recorded. Once the document contains a clause regarding relinquishment of rights, the same is compulsorily registerable document under Section 17 of the Registration Act. The Court below rightly came to the conclusion that the document in question is a relinquishment deed and it is a compulsorily registrable document. Once the document contains a clause regarding relinquishment of rights, the same is compulsorily registerable document under Section 17 of the Registration Act. The Court below rightly came to the conclusion that the document in question is a relinquishment deed and it is a compulsorily registrable document. He further contends that by referring the Written Statement filed by the revision petitioners, oral partition took place in the year 2004 and the document is also of the year 2004. He also contends that it has recordedthe past partition. 7. In BANDIKATLA PADMAVATHI’s case referred to above, this Court held in Para No.10 as hereunder: “On a careful application of the case law referred to above to the present case, I have no doubt in my mind that the document in question clearly shows that the title already came to be resided in the plaintiff and the husband of defendant No.1 and that the past arrangement was merely reduced into writing to avoid disputes in future. This being the predominant object in the execution of the document, if certain rights are purported to be conferred on one party and such rights are relinquished by another party under the said document, the antecedent title must be assumed and the family arrangement will be upheld in Kale’s case (supra). Therefore, a stray recital which may give an impression that the rights are for the first time conferred on the parties would not ellipse the predominant objection with which the family settlement was reduced to writing” Though in this decision, it is held that predominant object and the description has to be taken into consideration. It was also held that only past arrangement was merely reduced into writing to avoid disputes in future and held that the document is not compulsorily registerable. I have perused the document and also the purport of the document referred to by the learned single judge in that case. The document in that case is not exactly worded like in the present case. In the present case, there is a clause regarding relinquishment of right, as such, the decision cited by the learned counsel for the petitioner has no application to the facts of the present case. 8. I have gone through the document dated 20.06.2004. The document in that case is not exactly worded like in the present case. In the present case, there is a clause regarding relinquishment of right, as such, the decision cited by the learned counsel for the petitioner has no application to the facts of the present case. 8. I have gone through the document dated 20.06.2004. First part of the document shows that the past partition was recorded and the second part of the document shows that first respondent/plaintiff relinquished her share by accepting money. This second clause shows that the first respondent/plaintiff has relinquished her share in the property and as such, it is found that it is a relinquishment deed and compulsorily registrable. The Court below by Order dated 22.01.2013 also came to the same conclusion that the objection taken by the first respondent/plaintiff was upheld. After perusing the order passed on 22.01.2013 and the document dated 20.06.2004, I found that it is a relinquishment deed and compulsorily registerable document, as such, I do not find any infirmity in the order passed by the Court below regarding that aspect. As such, the same does not require interference by this Court. Accordingly, the Order dated 22.01.2013 is confirmed and the C.R.P.No.3208 of 2013 is liable to be dismissed. 9. The next question is whether the document can be impounded or not has to be seen in C.R.P.No.3119 of 2013 ? 10. I.A.No.132 of 2013 is filed with a prayer to send the document dated 20.06.2004 alleged to have been executed by respondent No.1 to the District Registrar, Nalgonda for assessment and collection of stamp duty. Prayer is only for sending the document for assessment and collection of stamp duty under Section 35 of the Indian Stamp Act. Moreover, it is contended by the counsel for revision petitioners that they want to rely on the document for collateral purpose eventhough the document is compulsorily registerable document and as per Section 49 of the Indian Registration Act, 1908, the same can be received as an evidence. In a decision reported in M.A. BHUPATHI VS. Moreover, it is contended by the counsel for revision petitioners that they want to rely on the document for collateral purpose eventhough the document is compulsorily registerable document and as per Section 49 of the Indian Registration Act, 1908, the same can be received as an evidence. In a decision reported in M.A. BHUPATHI VS. M. KOTESWARA MUDALI AND ANOTHER cited above, this Court held that “The learned counsel for the petitioner submits that the I.A. was filed not only seeking the relief of sending the documents for impounding, but also to validate and admit the same in evidence, and the Court below granted the said relief, and hence requested to modify the order. The learned counsel for the respondents on the other hand submitted that the question of admitting and marking the documents comes at a later stage, and that the said question is not germane for consideration at this stage by this Court, and that there is no basis for the apprehension of the petitioner, and requested this Court to dismiss the revision as there is no merit. The learned counsel for the respondents in support of his submission that the Court below was perfectly justified in sending the documents to the R.D.O for impounding, relied upon the judgment of this Court in B.V.R. Reddy Vs. A. Co-op C. Stores, in which it was held as under: “If the party filing the documents wants it to be admitted in evidence, then only the Court shall collect the duty and penalty and then admit it in evidence. But if the party instead of requiring the documents to be admitted in evidence merely wants the Court to send it to the Collector to be dealt with under Section 40, the Court has no option, but to send it to the Collector as provided under Section 38(2). The Court cannot compel the party to pay duty and penalty and have it admitted in evidence.” 11. In NUVVURU VENKATA SUBBA REDDY VS. SK. MOHAMMED HUSSAIN AND ANOTHER cited above, this Court in para No.4 of the Judgment held as follows: “It is pertinent to note that Sub-Sec.(2) of Section 38 of the Act specifically says that in every other case, the person so impounding an instrument shall send it in original to the Collector. In KHWAJA ZAHEERUDDIN V. FATHIMA BEGUM AND OTHERS (C.R.P.NO.347/82, DT. In KHWAJA ZAHEERUDDIN V. FATHIMA BEGUM AND OTHERS (C.R.P.NO.347/82, DT. 28.06.82) it was held that a close scrutiny of Sections 33 and 38(1) of the Indian Stamp Act reveals that at the time proximate to induction of evidence, the concerned authority is clothed with the power to levy duty and it is only when the authority is seized of the matter in the course of admitting the document in evidence the authority will have the necessary opportunity and facility to examine the purport and implications of the document for the purpose of determining the levy of correct duty and in Sections 33 and 38(1) of the Indian Stamp Act the focus is upon the time of reception of evidence and Section 33 of the said Act connotes the levy of duty at the time when it is ripe for admission of document as evidence and Section 38(1) of the Act envisages the document to be sent to Collector after evidence and before the matter is ripe for evidence, if a petition is filed to send the document to the collector for levy of proper stamp duty, the Court has to accede to this request pursuant to Section 38 (2) of the Act. In Indurupalli Ramanaiah V. Somisetti Radhakrishnaiah while dealing with the scope and ambit of Sections 33, 35, 38, 40 and 42 of the Indian Stamp Act, it was held that where a party requesting the impounding, the Court to send a document which is not duly stamped but is intended to be admitted in evidence, to the Collector under Section 38(2) of the said Act Court but cannot refuse to send it to the Collector. In Nalajala Jagannadham V. Veerepally Mangamma, it was held that Court cannot compel a party to pay stamp duty and penalty when the party intends to send the document to Collector under Section 38(2) of the Indian Stamp Act, 1899”. 12. In Nalajala Jagannadham V. Veerepally Mangamma, it was held that Court cannot compel a party to pay stamp duty and penalty when the party intends to send the document to Collector under Section 38(2) of the Indian Stamp Act, 1899”. 12. In MEHRUNNISA BEGUM V.M.A. KHADAR AND OTHERS cited above, this Court held in para No.9 as follows: “That portion of the impugned order to the extent of permitting confrontation of the document to the 1st defendant as dW.1 through the counsel for defendants 8 and 9 is concerned, the same is not shown to be opposed to any provision or principle of law, but insofar as the other part of the conclusions of the order about the nature of the document is concerned, the same is liable to be interfered with under the circumstances. It should be, however, made clear that if required stamp duty and penalty is paid on the document treating the same as relinquishment deed in respect of the property covered by it, the document will become admissible for any collateral purpose within the scope of Section 49 of the Registration Act, though it cannot be admitted in evidence for any principal purpose”. In the above judgments, this Court held that when the petition is filed for sending the document for impounding, the Court cannot compel the party to pay stamp duty and penalty and the same can be referred to Collector under Section 38 (2) of the Indian Stamp Act for assessment and collection of stamp duty. The present petition is filed only for sending the document and if the respondent have any objection, the same can be raised at the time of marking or exhibiting the document in evidence. In view of the same, the Court below should have allowed the petition for sending the document to District Registrar for impounding. Thus this Court is of the view that the Court below erroneously dismissed the same holding that the document was held to be a relinquishment deed and it is a compulsorily registerable document. Eventhough the document is a registerable document, the same can be sent to Registrar for impounding. 13. In view of the above findings given in the foregoing paras, C.R.P.No.3208 of 2013 is dismissed and C.R.P.No.3199 of 2013 is allowed. Consequently, the miscellaneous applications, if any, pending in both the Civil Revision Petitions shall stand closed.